Throughout these Terms and Conditions of Sale, savewhere the context requires otherwise, the following definitions shall apply:
shall mean the products the Seller agreed to sell and the Buyer agreed topurchase.
shall mean ElbOil GmbH
shall mean the party who agreed to purchase the Bunker Fuels
shall mean both the Seller and the Buyer
shall mean the commercial grades of bunker oils as generally offered to theSeller’s customers
shall mean a confirmation in writing (including email and telefax) by theSeller to the Buyer setting forth the particular terms of the Bunker Contract.
shall mean the agreement between the Buyer and the Seller, as evidenced in theBunker Confirmation
“Bunker Delivery Receipt”
shall mean the document which is issued by the Buyer or its representative,confirming delivery of the Bunker Fuels
binding order issued by the Buyer relating to Bunkers to be delivered by theSeller
shall mean any party instructed by or on behalf of the Seller to supply ordeliver bunker, including sub-suppliers
shall mean the vessel to which the Bunker Fuels are delivered as well as anyother facility, as the case may be, to which the Bunker Fuels are delivered
2. Application of Terms and Conditions of Sale
These Terms and Conditions shall apply exclusively tothe Bunker Contract and its conclusion. Deviating terms, in particular theBuyer’s deviating terms, are excluded. These Terms and Conditions shall alsoapply to all future contracts between the Parties for the delivery of Bunkersby the Seller.
The price for delivery of Bunker Fuels sold hereunder shall be agreed upon bythe Parties. The Buyer shall, in addition to the agreed price, pay allapplicable duties, taxes and other such costs including but not limited tothose costs imposed by governmental authorities and barging and other deliverycharges.
Prices quoted as “delivered” comprise the ex-wharf price and delivery chargesonly.
All prices and / or tariffs are exclusive VAT, unless specifically statedotherwise.
The prices agreed between the Parties shall remain binding for a period of 3(three) days after the agreed time of delivery. If delivery is effected aftersuch three day period, due to reasons the Seller is not responsible for, theSeller shall be entitled to adjust the agreed price in accordance withprevailing market conditions. This right is without prejudice to any claim fordamages the Seller may have against the Buyer in respect of the delayeddelivery.
The Seller shall confirm the Bunker Contract by a Bunker Confirmation followingthe Buyer’s Nomination.
The Bunker Contract shall supersede any conflicting terms of other contractswhich the Buyer may seek to apply against the Seller. In particular, any termsnot directly applicable to bunker transaction may not be applied against theSeller.
The Buyer, or its agent at the port or place of delivery, shall give the Selleror its representative at the port or place of delivery 72, 48 hours approximateand 24 hours definite written notice of arrival, also advising any change inexcess of three (3) hours, and the exact location and time at which deliveriesare required.
The time of delivery, as agreed upon in the Bunker Contract, shall be anapproximate time. The time of delivery will only be binding upon separatenotice of the Seller after receiving all information necessary for the Sellerto comply with its obligations as mentioned in Section 5.1 of these Terms andConditions of Sale. In the event the Nomination addresses a spread of dates fordelivery, the Seller has the sole discretion to commence the delivery withinany time, day/night/ sshinc of these dates, always subject to the circumstancesset out below in Section 5.4.
Vessel shall under all circumstances be bunkered as promptly as the prevailingcircumstances permit, having regard to congestion affecting the deliveryfacilities of Seller, its Suppliers or Agents and to prior commitments ofbarges. Seller shall not be liable for any consequences or any time lost due toBuyer’s Vessel having to wait for berth for bunkering or for completion ofbunkering, and unless otherwise agreed in writing, Seller shall not beobligated to deliver prior to the nominated date or spread of dates as set outin Section 5.2 of these Terms and Conditions of Sale.
Where delivery is required outside normal working hours and is permitted byapplicable regulations, Buyer shall pay all overtime and extra expensesincurred.
The Seller shall not be liable for inability to deliver on public or dockholidays or on customary nonbusiness days of the week.
The Buyer shall ensure that the Vessel provides a free, safe and always afloatand accessible site for the delivery of bunkers and that all necessaryassistance as required by the Seller or the Seller’s representative is renderedin connection with the delivery. If, in Supplier’s opinion clear and safe berthis unavailable, delivery might be delayed or, in Seller’s option, cancelled andall costs related to above will be on account of the Buyer.
The Buyer’s Vessel shall moor, unmoor, hoist and lower bunkering hose(s) fromthe barge(s) whenever required by the Seller, Seller’s representative orSupplier, free of expenses, and in any way requested to assist barge equipmentto a smooth supply. The Buyer shall make and be responsible for all connectionsand disconnections between the delivery hose(s) and the Vessel’s bunker intakemanifold/pipe and ensure that the hose(s) are properly secured to the Vessel’smanifold prior to commencement of delivery.
Local further special requirements for receiving bunkers must be followedstrictly by the receiving Vessel, whether advised or not by the Seller, theSeller’s representative or Supplier, as it is always the Vessel and the Buyerwho remains solely responsible for the awareness of such eventual additionalrequirements for safety reasons.
Where lightering/barging is employed, lightering/barging charges shall be forthe account of Buyer. If Buyer fails to take delivery, in whole or in part, ofthe quantities nominated, Buyer shall be responsible for any costs resultingfrom Buyer's failure to take full delivery, as well as for any losses incurredby Seller to downgrade and/or pump back of the fuel.
Buyer will be liable for all demurrage or additional expenses incurred bySeller if Buyer causes delays in effecting delivery. Buyer will also pay formooring, unmooring and port dues incurred. In addition Buyer will be liable forany expenses incurred by Seller resulting from Buyer's failure to take deliveryof the full quantity of Bunker Fuels agreed upon, including but not limited toany loss on the resale of the Bunker Fuels. The Buyer shall bear the risk ofthe return transport, demurrage on the barge or trucks, storage or selling ofthe Bunker Fuels. This does not apply, if there has been any willful misconductor gross negligence on part of the Seller.
Buyer shall indemnify and hold harmless Seller against all damage andliabilities arising from any acts or omissions of Buyer or its servants, ship'sofficers or crew in connection with the delivery of the fuel under thisagreement.
If Buyer cancels the Nomination for any reason whatsoever any charges incurredare for Buyer's account.
Buyer shall have the sole responsibility for the selection of the proper gradesof Bunker Fuels for use in the vessel being supplied and the Seller shall notbe under any obligation to check whether the grade of Bunker Fuels is suitablefor the intended purpose. The Bunker Fuels shall be of the same qualitygenerally offered for sale at the time and place of delivery, for the grade ofBunker Fuels ordered by the Buyer.
The Buyer shall be responsible to keep the delivered Bunker Fuel segregatedfrom any Bunker Fuel (s) onboard the Vessel or from a different delivery to theVessel. In no event shall the Seller be responsible for the quality andcompatibility of the Bunker Fuel delivered if the Seller’s product is mixed orcommingled with any other product(s) onboard the receiving Vessel. The Buyershall be solely responsible for any losses caused by mixing or commingling theBunker Fuel with any other oil, including any damage the Bunker Fuel may causeon other products on board the receiving Vessel.
The quantity of Bunker Fuel delivered shall be determined from gauges/ullagesof the barge or truck effecting delivery or by gauging/ullages of shore tank ifdelivery is effected by pipeline.
The Buyer’s representative shall together with the Seller’s representativemeasure and verify the quantities of Bunkers delivered from the tank(s) fromwhich the delivery is made. To determine the quantity supplied the tankcalibration and ullage sounding records from the barge are considered to be thesole valid and binding document.
In respect of the quantity agreed upon the Seller shall be at liberty toprovide, and the Buyer shall accept a variation of 5% from the agreed quantity,with no other consequence than a similar variation to the corresponding invoicefrom the Seller.
The Buyer shall not be entitled to complain of an incorrect measurement of thevolume of Bunker Fuels delivered unless the Buyer or its representative haswitnessed such measurement and has made a complaint in writing at the time ofdelivery.
In the event of complaint/comment on the quantity the Buyer shall give to theSeller or Supplier a letter of protest only. Any comments on the BunkerDelivery Receipt are not permitted
The Seller or its representatives shall arrange for samples to be drawn at thetime of delivery of the Bunker Fuel. Unless otherwise agreed upon by theParties prior to entering into the Bunker Contract, the samples shall be drawnfrom a point and in a manner chosen by the Seller or its representatives inaccordance with the customary sampling procedures at the port or place ofdelivery of the Bunker Fuel.
The sampling mentioned in paragraph 8.1 shall be performed in the presence ofthe Seller or its representatives and the Buyer or its representatives, but theabsence of the Buyer or its representatives during all or any part of thesampling process shall not prejudice the validity of the samples.
The Seller shall take four samples in accordance with its normal samplingprocedures at the port in question. Two (2) samples shall be retained by theBuyer or its representatives, one of these shall be the MARPOL compliantsample. The remaining samples shall be retained by the Seller or itsrepresentatives.
The aforementioned samples shall be securely sealed and provided with labelsshowing the Vessel’s name, identity of delivery facility, product name,delivery date, and place and seal number, authenticated with the Vessel’s stampand signed by the Sellers’ representative and the Master of the Vessel or hisauthorized representative.
In case of a dispute in regard to the quality of Bunker Fuels delivered one (1)of the samples retained by Sellers shall be forwarded to an independentlaboratory to perform a set of tests, the result of which are to be madeavailable to both parties. Those test results shall be final and binding uponboth Buyer and Seller as to the parameters tested. The parties are to use bestendeavours to agree the independent laboratory to perform the tests. Theindependent laboratory should be at the port in question or at the closestplace to the port in question. If the Seller and the Buyer cannot agree on anindependent laboratory to perform mutual analysis or if the Buyer fails toreply to the Seller’s notice hereof within five (5) days from receipt of suchnotice, the Seller can at its sole discretion decide which laboratory toperform the analysis, which shall be final and binding for all partiesinvolved.
The seal must be breached only in presence of both parties unless one/both inwriting have declared that they will not be present.
9. Assignment of Risk, Reservation of Title
Risk in the Bunker Fuel, including loss, damage, deterioration, evaporation, orany other condition or incidents related thereto shall pass to the Buyer as theBunker Fuel passes the delivering vessel’s or truck’s manifold. The Buyerwarrants that representatives from the Vessel shall be responsible for ensuringthat the Bunker Fuel is received in a safe way.
The Seller shall retain ownership of the supplied products until payment hasbeen received in full of all current and future receivables of the Buyerarising from the supply relationship in existence between the contractualparties (including balance claims from a limited current account relationshiparising from this supply). If the Buyer is in breach of the contract, inparticular but not only in the case of payment default, the Seller shall beentitled to reclaim the purchased goods and to take possession of them. If thepurchased goods are returned this is considered to be a withdrawal from thecontract by the Seller.
Payment for the delivery and of all other charges shall be made in full(without any abatement, deduction, set-off or counter claim whatsoever) in USDollars. Payment shall be due with effect from the date of delivery and shallbe made by means of Telegraphic transfer, automated credit transfer orelectronic transfer of same day funds quoting the Seller’s invoice number andthe Buyer’s name. Any amounts owed under the Bunker Contract shall be receivedno later than 30 days (or such other period as is agreed by the Parties) fromthe date of delivery, failing which, the Buyer shall be in default. If,however, the Seller’s bank is closed for business on the last day of theapplicable credit period the Buyer shall make its payment by the last daywithin such credit period when the Seller’s bank is open for business. All bankcharges in respect of such payments shall be for the remitter’s account.
In the event that any Invoice is not paid in due time, the Buyer shallindemnify the Seller against any loss which is caused by adverse currencyfluctuations between the invoice currency and the value of the US Dollar fromthe latest due date of the invoice until the date on which payment is made.Furthermore, in case the Buyer does not pay any invoice in time and is indefault, the Buyer is obliged to pay interest at 2 % per month on therespective amounts overdue.
Notwithstanding any agreement to the contrary, payment will be due immediatelyand the Seller shall be entitled to withhold future deliveries (Section 321 paragraph 1 German Civil Code) in case of:
(a) any application being made or any proceedingsbeing commenced, or any order or judgment being given by any court, for
(i) the liquidation, winding up, bankruptcy,insolvency, dissolution, administration or re-organisation, or similar, or
(ii) the appointment of a receiver, liquidator,trustee, administrator, administrative receiver or similar functionary of theother party or all or a substantial part of its assets otherwise than for thepurpose of a reconstruction or amalgamation);
(b) the Buyer suspending payment, ceasing to carry onbusiness or compounding or making any special arrangement with its creditors;
(c) any act being done or event occurring which, underthe applicable law hereof, has a substantially similar effect to any of thesaid acts or events described above.
The Seller shall not have this right, if the Buyerdeposits a sufficient security or if a liquidator demands delivery inaccordance with § 103 InsO and guarantees payment.
The Seller shall be to require the Buyer toeffect payment or deposit a security within a reasonable time. If the Buyerfails to comply in time, the Seller shall be entitled to revoke its obligationtowards any future delivery.
Sales shall be made on the credit of the receiving vessel, as well as on thecredit of the Buyer, and the amount due on the purchase price, together withall delivery and other charges forming part of the Bunker Contract, shallbecome a maritime lien against the vessel immediately upon delivery.
Any notice or any stamp in the Bunker Delivery Receipt or similar cannot waivethe Seller’s maritime lien on the Vessel.
Should the Bunker Fuel be purchased by a manager, broker or agent then suchmanager, broker or agent as well as the Buyer shall be bound by and liable forall obligations as fully and completely as if they were themselves the Buyerwhether such principal be disclosed or undisclosed and whether or not such manager,broker or agent purports to contract as manager, broker or agent only.
Furthermore, delivery shall always take place for theaccount of the registered owners and for the account of the current charterersall of whom shall be jointly and severally liable for the payment of thedelivery as Buyers. The Buyer warrants that it is authorized as agent to orderthe Bunker Fuel for delivery to the Vessel, and that the Seller has a lien onthe Vessel for its claim.
11. Arrest of Vessel
The Bunker Fuel supplied to the Vessel is sold anddelivered on the credit of the Vessel, as well as on the promise of the Buyerto pay therefore, and the Buyer agrees and warrants that the Seller shall haveand may assert a maritime lien against the Vessel and may take such otheraction or procedure against the Vessel and any other vessel or assetbeneficially owned or controlled by the Buyer, for the amount due for theBunker Fuel and the delivery thereof. The Seller is entitled to rely on anyprovisions of law of the flag state of the Vessel, the place of delivery orwhere the Vessel is found and shall, among other things, enjoy full benefit oflocal rules granting the Seller maritime lien on the Vessel and/or providingfor the right to arrest the Vessel. Nothing in the Bunker Contract shall beconstrued to limit the rights or legal remedies that the Seller may enjoyagainst the Vessel or the Buyer in any jurisdiction.
(a) The quantity of Bunker Fuel delivered shall be determined in accordancewith Section 7.1. Any claim regarding the quantity of the Bunker Fuel deliveredshall be notified verbally as well as in writing by the Buyer or the master ofthe Vessel to the Seller immediately upon delivery of the Bunker Fuels, whilethe delivery hoses are still connected. In any event if written notice is notmade within 24 hours of delivery, such claim shall be deemed to be waived andbarred.
(b) A notification inserted in a separate protesthanded to the physical supplier of the Bunker Fuel shall not qualify as noticeunder this Section 12.1 and the Seller shall in no circumstances be deemed tohave accepted such notice or protest issued to the physical supplier.
(c) Additionally, any claim for short delivery shallbe waived and barred if it is not presented by the Buyer in writing within 7days from the date of delivery including full supporting documentation. Section(a) above shall remain unaffected.
All claims regarding the quality of the bunkers delivered shall be submitted tothe Seller in writing within 14 (fourteen) days after delivery with a clearstatement as to the nature or the claim(s) along with supporting documentationin support. Should the Buyer fail to make timely notification of any claimregarding the quality of the Bunker Fuel the claim shall be deemed waived andbarred.
The Buyer shall be obliged to make payment in full and fulfil all otherobligations in accordance with the terms hereof, whether or not they have anyclaims or complaints. However, the Buyer shall be entitled to set off orwithhold payment in case it holds claims against the Seller which are eitherundisputed or determined without further legal recourse.
In the event of any claim presented in accordance with Section 12.1 and 12.2,the Buyer shall:
(a) Cooperate with the Seller and make all necessaryarrangements for the Seller or its representatives to investigate such claim,including but not limited to the boarding and inspection of the Vessel, theinterviewing of crew and the review and copying of Vessel documents.
(b) Take all reasonable steps and actions to mitigateany damages, losses, costs and expenses related to any claim of allegedoff-specification or defective Bunker Fuel. If the Bunker Fuel deviates fromspecifications, the Buyer shall use all reasonable endeavours to mitigate theconsequences hereof and shall burn the Bunker Fuel if possible even if thisrequires employment of purification tools or other similar measures.
(c) Take all reasonable steps to preserve the Seller'srecourse against the physical supplier of the Bunker Fuel or any culpable thirdparty
A breach by the Buyer of any part of Section 12.4 above will entitle the Sellerto set off losses caused by the breach against any liability to the Buyer.
Any claims against the Seller in respect of this contract shall be broughtbefore the competent court within 6 (six) months of the date of delivery of theBunker Fuel, failing which such claims shall be deemed waived time barred.
In case of intent or gross negligence on the Seller’s part or by its agents orassistants in performing, the Seller shall be liable according to theprovisions of the applicable law; the same applies in case of breach offundamental contract obligations. In all other cases, the Seller’s liabilityfor damages shall be limited to the typically foreseeable damage.
The Seller’s liability for culpable damage to life, body or health as well asthe liability under the Product Liability Act shall remain unaffected.
Any liability not expressly provided for in Section 13.1 or 13.2 shall beexcluded.
The Seller’s servants and independent sub-contractors as well as theirservants, including but not limited to the Supplier, may rely on all exclusionsand limitations of liability afforded to the Seller both by the law applicableand in this Bunker Contract.
14. Force Majeure
Neither party shall be responsible for any loss,damage, delay or failure in performance under the contract resulting from actof God, or the port of delivery being affected by war, civil commotion, riot,quarantine, strikes, stoppages, lock-outs, arrests, restraints or detainmentsof Kings, Princes, Rulers and the People or any other event whatsoever arisingafter conclusion of the Bunker Contract which cannot be avoided or guardedagainst by the exercise of due diligence, or the consequences of which, as mayaffect the performance of the contract cannot be avoided or guarded against bythe exercise of due diligence.
15. Environmental Protection
In the event of a spill or discharge, before, duringor after supplying the Bunker Fuel, Buyer and the vessel shall, at their ownexpense, immediately take whatever action is necessary to give prompt notice tothe official bodies and to effect cleanup. Failing prompt action, Buyer and thevessel authorize Seller to conduct and/or contract for such cleanup at Buyer'sand vessel's expense. Buyer warrants that the vessel supplied is in compliancewith all national, state and local statutes, regulations and ordinances,including those requiring proof of financial ability in regard to spills ordischarges of oil. Buyer shall hold Seller harmless as to any delays, claims,losses, expenses or penalties arising from breach by Buyer of this warranty,including attorney’s fees.
16. Salvage, General Average, Limitation of Liability
In case a salvage claim arises in respect of the Bunker Fuels after theirdelivery to the Vessel for which the Seller is responsible, the Buyer shallhold harmless and indemnify the Seller in respect of these claims. The sameapplies if the Seller is subject to claims for general average contributions.
If the Bunker Fuels are delivered by bunker barge, the Seller’s right to limitliability in accordance with international law such as the Convention onLimitation of Liability for Maritime Claims, 1976, and any subsequentamendments, or the Strasbourg Convention on Limitation of Liability in InlandWaterway Shipping (CLNI), and any subsequent amendments, or any national lawapplicable in this regard shall remain unaffected by the provisions of theBunker Contract.
17. Applicable Law, Place of Performance, Jurisdiction
This Agreement shall be governed and construed in accordance with the laws ofthe Federal Republic of Germany. The 1980 UN Convention on Contracts for theInternational Sale of Goods (CISG) shall not apply.
Place of performance shall be Hamburg.
Any and all disputes arising out of or in connection with this Contract orconcerning its validity shall be finally settled by arbitration in accordancewith the Arbitration Rules of the German Maritime Arbitration Association(GMAA) current at the time when the arbitration proceedings are commenced. Thearbitration tribunal shall consist of two arbitrators unless the parties agreethat it shall consist of three arbitrators or a sole arbitrator. If the twoarbitrators cannot agree on a decision in the proceedings they shall appoint athird arbitrator. If a party fails to appoint an arbitrator within two weeks afterbeing requested to do so in writing (e.g. by letter, fax or e-mail) by theother party, the Chairman or Vice Chairman of the Board of GMAA shall appointthe arbitrator at the request of the other party. The foregoing shall applycorrespondingly in respect of the appointment of a substitute arbitrator. Theplace of arbitration shall be Hamburg.
However, the Seller is also entitled to commence proceedings against the Buyerat the courts of the Buyer’s principle place of business or any other competentcourt as long as the Buyer has not already started arbitration proceedingsbeforehand in the same matter by appointing an arbitrator and having notifiedthe Seller thereof.
Ifany part of this agreement is invalid, it shall not affect the validity of theremainder of the agreement or any part thereof.
Theseterms and conditions shall apply to any Bunker Contracts concluded between theBuyer and the Seller/ElbOil GmbH.